Georgia Mom Sues City Over Son’s Death While in Police Custody

A Georgia mother has filed federal suit against the city of Pelham police department alleging wrongful death and gross civil rights violations in the death of her 17-year-old son. Fabian Avery died while in solitary confinement after prison guards placed him there as a means of ignoring his repeated pleas for medical assistance.

Fabian Avery III was found dead in a Mize Street Municipal County jail cell in December of 2010, nearly a month after being taken into custody on aggravated assault and armed robbery charges. Avery was moved to Pelham in early 2011 after the Fulton County Jail was deemed overcrowded.

Almost immediately upon being transported to the Mitchell County institution, Avery began to complain of non-stop nausea, unbearable stomach pains and other intestinal problems, all of which resulted in him repeatedly defecating and vomiting on himself. At the time of his death, Avery weighed 108 pounds, markedly down from the 153 he carried on his 6-1 frame at the time of his incarceration.

An autopsy has since revealed the cause of death as appendicitis and complications from a bowel obstruction. The suit filed by Sandrini Scott, Avery’s mother, specifically names Police Chief Nealie McCormick and city manager Doug Westberry as co-defendants, along with the jail’s nurse, doctor and four correctional officers.

“They were saying that he was fine,” Fabian Avery II said of his son. “I called every day, all day… I just kept calling. They would say Fabian is alright. Then I got a call to say he had passed.”

Avery III was one of several Fulton County inmates outsourced to Pelham from nearby Gwinnett, Johns Creek and Sandy Springs prisons as a means of satisfying a federal mandate to alleviate overcrowding. The Fulton facility, which houses as many as 354 inmates, is often contracted by such institutions to house prisoners by all of those institutions, a practice that has now come under increased scrutiny and has been at least temporarily shelved according to Fulton County jails spokesperson Tracy Flanagan.

"In the face of Avery's obvious pain, deteriorating condition and pleas for help from Fabian himself, from his family and from other inmates, the medical, supervisory and correctional staff at the Mize Street Detention Center stood by and was deliberately indifferent to his serious medical needs," the lawsuit reads.

"This inaction was due, in substantial part, to deficient policies of the City of Pelham and the Pelham Police Department, which failed to provide sufficient, qualified medical staff and failed to train their non-medical staff to recognize and respond to serious medical conditions."

Beyond denying any responsibility, city attorney Phillip Savrin declined comment, begrudgingly adding “this is an unfortunate case… if the jail staff had any indication that he needed any more medication it would have been provided.”

Avery was found unresponsive and sprawled across the mattress of his concrete floor of his 6-by-10 foot isolation jail cell on the night of March 18, 2011. Reports indicate he was placed in isolation or “the hole” back in late February, at least partly, as punishment for frequently soiling himself and not cleaning up or showering.

At that point, the suit alleges on-site nurse Mary Kincaid, along with a host of other jail staffers, suggested Avery might have been faking and as such should not be taken seriously.

"Kincaid stated that when she had questioned Avery in the past about soiling himself and why [he] did not get up to use the bathroom, Avery told Kincaid that he did not want to get up to use the bathroom," language in the report reads. "Kincaid said that Avery said he was scared to be sent to the prison system."

Reports also suggest Kincaid told prison authorities she was convinced Avery might be faking some of his symptoms, adding that she stressed he would not produce urine sample and on at least one occasion she caught him sticking his finger in his mouth to induce vomiting.

"The question is going to be, did [the jail staff] get him medical attention, and did they follow the doctor's advice?" Savrin said. "The answer is yes they did."

Nonetheless and perhaps not so coincidentally, the lone staffers not represented by Savrin, Dr. Thomas Lincoln, an independent physician contracted by Avery’s mother, Sandrini Scott, vehemently finds the staff ignored Avery as he became sicker.

"Yet, they did not do anything to improve Fabian Avery's condition," he added in his own report. "Clearly, Fabian Avery was in persistent pain and needed qualified, reasonable medical attention in a hospital.

Family attorney Jay Hirsch noted that although the suit currently does not list any Fulton County jail staffers as defendants, the victim’s family is still considering that possibility.

"They exposed him to Pelham," he said. “Had the jail afforded him his constitutional rights to adequate and basic medical care, had the jail simply sent him to the local hospital, yes he would still be with us today,” Hirsch told ABC’s WALB New 10.

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Glenn Minnis is a NYC-based sports and culture writer. Follow him on Twitter at @glennnyc.